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That Dangerous Invention

Mike Munger quotes me as saying: “What de Jasay and so many classical liberals cannot bear is that an expansive welfare state has been supported largely because the majority of voters and politicians believe it is fair and just”. He asks: “Seriously, what kind of riposte is it that?” And he adds “65% of the voters and politicians believe that little green men crashed at Roswell.”

I am perplexed by Mike Munger’s reply: I maintained that the welfare state is not based on a power grab based on the pursuit of interests but on the majority’s sense of fairness, and he replies that the majority is stupid and that the results are not fair. But that is just not the point. The debate between de Jasay and me was: pursuit of interest or belief in fairness? Munger replies: stupid and not fair. My claim was that the problem was not that interests are unbound, but that classical liberals have a very different understanding of the moral limits of government than their fellow citizens.

Since Munger has raised the polemic ante, I’ll see him and raise.

Leaving aside the fact that Munger’s “reply” is largely irrelevant to what I said, the interesting thing about what he says is that so many classical liberals just cannot help attacking democracy, even when the debate is not about democratic competency but about motivation. Classical liberals — especially those with economics backgrounds — just love to attack democracy.

Munger stresses that “democracy is so dangerous.” Here is the problem of classical liberals of his ilk: the only form of political organization that has had a sustained history of avoiding repressive government is “dangerous.” I take it that Munger is basing his claim on the history of the twentieth century and just how terribly dangerous democracies were to the world. So what are the good old non-democratic times when people were truly free? Well, maybe it was the United States in the 19th century — but then slavery doesn’t look so awfully freedom-enhancing, does it? How about the United Kingdom In the 19th century? Of course there was the Act of Uniformity, the Test Acts and the Penal Laws that disadvantaged Catholics. And then there was the Six Acts in 1819 which curtailed civil liberty, which strikes many of us as dangerous. No ignorant public ruling then, just a better-educated upper class repressing some. Of course Catholics were emancipated by 1829; but then we get the reform Act of 1832 and — gasp — the beginnings of that dangerous invention known as democracy.

Maybe the Golden Age was when we no longer had rule by the aristocracy but had not yet succumbed to the horror of giving the ignorant workers something so “dangerous” as a vote. The Irish probably would have disagreed. Maybe we should look to non-democratic havens such as Pinochet’s Chile. After all, if it had a privatized pension system it must have been a beacon of liberty. There is always the model of Hong Kong under the British as the general model of how to institutionalize freedom in the world. If you are desperate for a truly non-dangerous non-democratic government, maybe your ideal is Singapore.

It is such a pity that so many of today’s classical liberals such as Munger have talked themselves into being anti-democrats. The long slide of classical liberalism since J.S. Mill — from a plausible political theory to a sort of irrelevant cranky complaint about the modern world — is all too apparent. Mill was well aware of the dangers and infirmities of democracy; he did not need Bryan Caplan’s book to know that there was a “low grade of intelligence” on the part of many voters. But he did not become an an anti-democrat (when that view was not confined to cranks) because he knew that no group of people — not even public choice economists — can be trusted to govern in a way that even has a chance of respecting the freedom of all. Of course democratic government is flawed. Duh. But anyone who thinks that somehow widespread freedom and democratization are inversely related … well, such a person is apt to be a contemporary classical liberal, I’m afraid.

Also from This Issue

Reprising the topic of his 1989 essay, “Is Limited Government Possible?” political theorist Anthony de Jasay continues to express limited skepticism. According to de Jasay, the incentive of political actors is to gain power by putting together winning coalitions, and to stay in power by rewarding their supporters at the expense of their opponents. If constitutional limits stand in their way, they will eventually be reinterpreted, undermined, or otherwise worked around. Governments are more delayed than limited by constitutional rules, like a lady with the key to her own chastity belt. If governments are effectively limited, de Jasay argues, then it is by means of the structure of campaign finance, the practical limits on tax rates, and public panic at the prospect of economic ruin. De Jasay admits conventional cultural and moral norms may limit government, but doubts these are strong enough to fully check the interests that drive politics.

In his reply essay, Gerald Gaus, the James E. Rogers Professor of Philosophy at the University of Arizona, argues that Anthony de Jasay has overlooked the importance of distinctively moral rules in regulating behavior. Drawing on recent work in psychology, Gaus distinguishes between conventional rules, which may be changed by the relevant authority without complaint, and moral rules, which may not. If constitutional limits on government fail, it is because these are seen as merely conventional rules out of sync with biologically and culturally evolved moral rules. “The welfare state reigns supreme not because the state and it allies have tricked the rest of us in a power grab,” Gaus argues. “It reigns supreme because in the eyes of most citizens it conforms to the egalitarian fairness norms that have evolved with humans.”

In his reply, Duke University political scientist Michael Munger agrees with de Jasay’s discussion of “the frontier between the ‘zones’ of individual and collective choice,” and provides a novel illustration. However, Munger disagrees that the problem with the “incentive-compatibility” of limits on power has been overlooked. He offers a classic historical example of incentive-compatible constraints and discusses the value of building conflicts of interest into political institutions through the separation of powers. “The last thing you want is an efficient government. Our only choices are a truly weak, but efficient, limited government, or else a powerful government prevented by strong ties from using most of its powers, most of the time.”

Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, notes that limited government is possible because it is actual, but acknowledges that “given that some limits on power clearly remain, these constraints failed to hold the line the Framers were attempting to draw.” Barnett argues that the mechanisms of limited power embodied in the Constitution – reciprocity, checks and balances, and the power of exit – would be more successfully realized in a “polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers.” Understanding why this would be an improvement “can help us appreciate why restoring the characteristics of the original Constitution as amended by the Fourteenth Amendment … would be far preferable to the constitutional status quo,” Barnett writes.

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